Literary loopholes

Crime does pay for some criminal authors

Editor's note: CNN.com is releasing excerpts from "Objection," a book by Nancy Grace, host of CNN Headline News' legal analysis show. In her book, published by Hyperion, the former Atlanta-Fulton County special prosecutor covers a number of topics, including the "blame-the-victim" defense, the effect of the "celebrity factor" on trials, and the debate surrounding the death penalty. The opinions expressed in this excerpt are those of Nancy Grace.

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Not so long ago, it appeared that crime victims were protected by the Son of Sam laws. David Berkowitz got that moniker when he became known as one of the most feared killers in New York City in the 1970s. His pent-up rage and frustration culminated in the murders of six people, injuries to seven others, and resulted in the largest manhunt in New York City history. During his reign of terror, he stalked lovers' lanes looking for victims and held the entire city hostage. When he was finally captured, the country was shocked to learn that the evil madman terrorizing the city was a chubby-cheeked postal worker with a deceptively sweet smile. Once in police custody, Berkowitz confessed to all the crimes and begged a trial judge to lock him away forever so he could never kill again. He is currently serving a 365-year sentence at the Sullivan Correctional Facility in Fallsburg, New York.

The possibility Berkowitz might write a screenplay and capitalize on the terror he'd caused galvanized the country. The Son of Sam laws went into effect in New York in 1977 and were originally enacted to stop Berkowitz from profiting by selling his story. The laws prevent criminals from receiving profits for recounting their crime, including books, movies, screenplays, and television deals. The laws also require that the contracting party pay any proceeds directly to the actual victims or, as an alternative, to a state victims'-compensation fund. Following New York's lead, forty-two additional states and the federal government enacted similar legislation.

Since then, the country has been lulled into the belief that our justice system would never allow criminals and their "dealers" to make money off the suffering of crime victims. Not so.

The Son of Sam laws were actually reversed by the Supreme Court back in the case of Simon & Schuster, Inc. v. New York Crime Victims' Board, 112 S.Ct. 501 (1991). The case arose after convicted gangster Henry Hill detailed his life of crime with the mob in a book titled "Wiseguy." New York columnist Jimmy Breslin praised the book, which became the basis for the movie "Goodfellas," calling it the "best book on crime ever written in America."

The Supreme Court allowed "Wiseguy" to be published. They declared the Son of Sam laws unconstitutional, claiming they violated criminals' First Amendment right to free speech. The Court held that the laws must be narrower because they included those charged with a crime in addition to those convicted. The justices wrote in their decision that the laws did not distinguish between works substantially about the crime versus those that mentioned the crime tangentially. For instance, Malcolm X had been behind bars, yet his works were not about his crimes but about his vision for societal change. Under the original Son of Sam laws, those works would have been banned.

Amazingly, after the reversal of the Son of Sam laws made criminal profiteering easy, few states took action. Most have not revised their laws to address the Court's "Wiseguy" ruling.

In 2000, Mary Kay Letourneau -- the former elementary-school teacher from Seattle, Washington, who had a sexual relationship with one of her sixth-grade students, then-12-year-old Vili Fualaau -- was legally allowed to help publish a book chronicling the "affair" despite being sentenced to jail in 1997 on a statutory-rape charge.

The state of Washington's State Court of Appeals ruled that Letourneau could not be barred from profiting from her story as part of her sentence, despite a Washington state law that allows for the confiscation of profits made by criminals in describing their crimes. At the time, attorney James Lobsenz cited the U.S. Supreme Court's decision ruling that convicts have a constitutional right to profit from book sales and movie rights, saying, "Is there any possible way we can argue with a straight face that our law is meaningfully different than the Son of Sam law in New York that was struck down?"

A French publishing house contacted Letourneau's attorney, who brokered his client and her underage lover a $200,000 advance for their story. The title of this page-turner? Un Seul Crime, L'amour -- Mary Kay Letourneau & Vili Fualaau, which translates into -- buckle your seat belt -- "Only One Crime -- Love." The book even included a defense of Letourneau penned as a prologue by Fualaau's mother, Soona.